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Definitions Obscenity - from Latin, obscenus - not said. Beyond First Amendment protection. Obscenity includes pornography, but also includes blasphemy and profanity. Pornography - from Greek pornographos - writing about prostitutes. Material whose primary purpose is to cause sexual arousal; not all pornography is obscene.

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Obscenity Originally Restricted to Blasphemy First known pornography prosecution, Rex v. Read (England, 1708) involved author of The Fifteen Plagues of a Maidenhead Acquitted. Court found book "bawdy stuff," but not criminal because it did not libel either the King or Religion.

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Obscenity Originally Restricted to Blasphemy First known successful pornography prosecution, Rex v. Curl (England, 1727) involved author of Venus in her Cloister, or the Nun in her Smock Court found Curl guilty of “offence to religion” as the action involved clergy in sexual situations that mocked religious rituals.

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Obscenity Originally Restricted to Blasphemy Massachusetts had only colonial statute condemning what today might be called pornography, but law required works be “in imitation of preaching or any other part of divine worship.” Changes law in 1835 to replace religious requirement with “tending to corruption of the morals of youth.”

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Burstyn, Inc v. Wilson (1952) Involved “The Miracle” by Roberto Rossellini, in which a man claims to be St. Joseph and impregnates a woman who believes she is Mary. Catholic Church condemns as blasphemous, 100s of letters sent to NY State Board of Regents protesting exhibition, which the Board then bans.

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Burstyn v. Wilson (1952) Supreme Court finds that provisions of the New York Education Law allowing a censor to forbid the commercial showing of any non-licensed motion picture film, or revoke or deny the license of a film deemed to be "sacrilegious," was a "restraint on freedom of speech."

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Arguments against Censorship Pornography is a harmless outlet for exploring sexual fantasies No one has moral authority to determine what may be perverted or “prurient” No proof that pornography increases sex crimes Problem of defining pornography to include sexual discourse serving other values

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Queen v. Hicklin (1868) “whether the tendency of matter charged as obscenity is to deprave and corrupt those who minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”

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Comstock Act of 1873 Made it illegal to send any "obscene, lewd, and/or lascivious" materials through the mail, including contraceptive devices & information. Used to ban works by Gustav Flaubert, Honore Balzac, James Joyce, D.H. Lawrence, Henry Miller, and Leon Tolstoy

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Comstock Act of 1873 Ban on contraceptives devices and info ended by appellate court decision (U.S. v. One Package of Japanese Pessaries, 2 nd Circuit, 1936) Comstock standards in place until modified by Roth v. U.S. in 1957

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Butler v. State of Michigan (1957) Michigan made it a misdemeanor to sell or distribute to the general reading public any book containing obscene language "tending to the corruption of the morals of youth" Court found that it violated the Due Process Clause because of significant overbreadth.

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Butler v. State of Michigan (1957) According to Justice Frankfurter in Butler, the effect of the Hicklin test was "to reduce the adult population of the United States to reading only what is fit for children."

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Roth v. US (1957)

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a. "whether to the average person, applying contemporary community standards, b. the dominant theme of the material, taken as a whole, appeals to the prurient interests," c. the work is without redeeming social value.”

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Memoirs of a Woman of Pleasure (Fanny Hill) v. Mass. (1966) a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.

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Miller v. California (1973)

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(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

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Prior Restraint on Obscenity Must meet all three requirements: 1. the burden of instituting judicial proceedings, and of proving that the material is unprotected, rests on the censor; 2. any prior restraint can be imposed only for a specified brief period and only to preserve the status quo; 3. A prompt final judicial decision on the merits must be assured. Freedom v. Maryland, 380 U.S. 51 (1965)380 U.S. 51

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Young v. American Mini Theaters (1976) Court upheld a Detroit zoning ordinance that forbade adult motion picture theaters from locating within 1,000 feet of any two other regulated uses or within 500 feet of residential areas. Regulated uses referred to 1 0 different kinds of establishments in addition to adult theaters.

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New York v. Ferber

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Ashcroft v. Free Speech Coalition (2002) Case brought by Free Speech Coalition, a pornography trade association, but also a "publisher of a book advocating the nudist lifestyle;” a painter of nudes; and a photographer.

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Ashcroft v. Free Speech Coalition (2002) Court found that "CPPA prohibits speech despite its serious literary, artistic, political, or scientific value." In particular, it prohibits the visual depiction of teenagers engaged in sexual activity, a "fact of modern society and has been a theme in art and literature throughout the ages."

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Child Pornography Prevention Act prohibited A. "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct.“ B. "any sexually explicit image that was advertised, promoted, presented, described, or distributed in such a manner that conveys the impression it depicts a minor engaging in sexually explicit conduct."

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U.S. v. Williams Williams was charged with one count of promoting, or “pandering,” material “in a manner that reflects the belief, or that is intended to cause another to believe,” that the material contains illegal child pornography Claims that statute is overbroad b/c it could be construed to punish the solicitation or offering of "virtual" (computer generated/animated) child pornography

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U.S. v. Williams "an offer to provide or request to receive virtual child pornography is not prohibited by the statute. A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children. It is simply not true that this means 'a protected category of expression [will] inevitably be suppressed,‘... Simulated child pornography will be as available as ever.”

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U.S. v. Stevens (2010) Congress enacts law prohibiting any visual or auditory depiction "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed," if that conduct violates federal or state law where "the creation, sale, or possession takes place.” Another clause exempts depictions with "serious religious, political, scientific, educational, journalistic, historical, or artistic value."